OV 5 — Psychological Injury to a Victim's Family

Points are properly assessed under OV 5 even when professional treatment has not yet been sought or received, and even when there is no present indication that such treatment will be sought, as long as the family member has suffered serious psychological injury that may require professional treatment in the future. "Serious" is defined as having important or dangerous possible consequences. The court must consider the severity of the injury, its consequences before sentencing, and how it is likely to manifest in the future. In this case, parents who stated they were "having a very hard time dealing with this" and that it had "a tremendous, traumatic effect" on them, properly supported 15 points.¹

The evidence was insufficient to support 15 points for OV 5 where the victim's father and brother "clearly experienced grief" from the victim's death but presented no evidence of the type of serious psychological trauma contemplated under OV 5. The trial court's primary justification was its conclusion that the death "ha[d] to be psychologically damaging for this family" — but OV 5 may not be scored solely on the basis of a trial court's conclusion that serious psychological injury would normally occur. Psychological injury cannot be inferred from the fact that the victim's mother did not speak at sentencing.²

OV 5 was properly scored based on a preponderance of the evidence where the victim's parents were present when their son was found with his throat slashed, demonstrating the traumatic nature of the incident; the trial court observed their demeanor during trial; the surviving victim testified his parents were "deeply affected" by the incident and were in the process of seeking professional help.³

OV 5 was properly scored consistent with Calloway where the victim's family's suffering was documented in victim impact statements detailing the ongoing impact of the victim's death on the family members. The standard is whether the psychological injury has "important or dangerous possible consequences."⁴

The trial court committed plain error in scoring OV 5 for psychological injury to a victim's family member in a criminal sexual conduct case. OV 5 cannot be scored in CSC cases. See also People v Alexander, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 364063).⁵

OV 5 was correctly scored at 15 points for psychological injury to the mother of the victim with respect to the defendant's second-degree murder conviction, but it could not be scored with respect to the defendant's related arson conviction because arson is not one of the enumerated crimes for which OV 5 can be scored.⁶

Reckless driving causing death is a homicide offense for purposes of OV 5 because death is an element of the offense. OV 5 may therefore be scored in a reckless driving causing death case.⁷

It was error to score 15 points for OV 5 in a second-degree murder case where the record was devoid of evidence to support such scoring. Relatives spoke at sentencing but did not demonstrate serious psychological injury — mere grief or emotional expression at sentencing is not sufficient without more to establish the required severity of psychological injury.⁸

The trial court did not err in scoring zero points under OV 5 where the grandmother of a deceased newborn submitted a sentencing letter speaking about disbelief, grief, anger, and heartbreak, but there was no evidence she necessarily required professional treatment. Note: Calloway subsequently overruled Portellos to the extent it required at least a present intention to seek treatment — that is no longer a prerequisite to scoring.⁹